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Zygier case highlights deeper security concerns

By Professor Ben Saul. First published in The Sydney Morning Herald.

11 March 2013

The Foreign Minister confirmed this week that Australia believes that Ben Zygier was an Israeli spy. More we do not know, including whether Zygier actually harmed Australia. A review by Foreign Affairs found no evidence that he misused his passports. His innocence must be presumed until disproved.

The review notes only that if media reports are true that he misused passports, this may be inappropriate. The review focused on the Department of Foreign Affairs and Trade, so we still do not know what ASIO knows. When asked, Israel refused to tell Australia what Zygier was charged with. Israel is hardly likely to tell Australia about his work.

If ASIO knows, it may not be able to say so publicly for fear of exposing Australia's own methods of penetrating Israeli intelligence. The Inspector General of Intelligence and Security does not believe ASIO acted improperly or unlawfully, but revealed nothing more. We may never know key parts of this story.

Whatever Zygier did or did not do, the stakes are bigger than his case. Misusing passports is already a crime in Australia. But the review raises harder policy questions about whether Australia should even provide consular help to dual citizens, and how our law should treat Australians who spy for others.

The review's main, candid finding was that DFAT should have provided better consular help to Zygier and not left it to ASIO or relied on Israeli promises. ASIO is not a consular service. Israeli assurances were questionable if Israel was a source of risk. Ministers should have been alerted. National security was at stake as well as the rights of an Australian.

The report also notes genuine limits to what Australia could do. Zygier's family did not request help, Zygier had lawyers, and he was an Israeli citizen entitled to protection under Israeli law. Australia awaits the results of Israel's inquiries and Australia cannot investigate in Israel.

In fact under international law Australia has no right to help a dual citizen in the person's other country, though that country may allow it. Australia thought it unlikely that Israel would consent, but did not try. As a matter of policy, Australia provides help to citizens and dual citizens alike. We will never know whether more support would have saved Zygier.

But the report calls for a review into whether Australia should provide consular help at all to dual citizens who work for foreign governments. The implication is that such Australians take their chances.

International law provides no consular rights for dual nationals because it assumes the person's other country will protect them as citizens, so consular protection is unnecessary.

The problem is that countries cannot always be relied upon to properly treat their citizens. Australia should continue to offer consular support to dual citizens who are at risk from their other government. We should not abandon fellow citizens whose basic rights are in danger, whether by torture, illegal detention, an unfair trial, or the risk of death. It makes no difference that Australians may hold another citizenship in a cosmopolitan world.

A broader question unanswered by the review is how Australian law should deal with citizens who spy for others. Currently espionage is only a crime if it involves dealing in Australian secrets or working for countries at war with Australia. But it is not a crime for an Australian to spy for other governments where it does not endanger Australian secrets, whether a person is motivated by money, ideology, or dual citizenship.

Depending on your politics, this can be good or bad. Some might like the idea of Australians spying for Britain's MI6 or America's CIA on North Korea's nuclear program, war crimes by Assad's Syria, or China's repression in Tibet. But we might dislike Australians who spy on Britain (or America, Canada or New Zealand) for North Korea, Syria, or China.

All of these cases are equally lawful. The current approach is too liberal, because it allows Australians to spy even for vicious, human rights-abusing governments.

Yet prohibiting Australians from spying for all foreign governments is excessive, because it would prevent Australians from gathering intelligence for our allies. Such intelligence might help Australia's own security, or help deal with global problems such as nuclear proliferation, genocide or terrorism.

It should be a crime for any Australian to spy for foreign regimes that threaten Australian or international security, or gravely violate human rights. Australians should no longer be allowed to aid dictators who repress their people or endanger our security.